Fox Rothschild LLP attorneys Brett L. Myers and Andy
Nikolopoulos recently obtained a complete defense verdict in an
unfair competition lawsuit in the Western District of Texas on
behalf of Visual Communication Services (VCS), a Texas-based
company that offers interpreting and sign language services for the
hearing impaired.

The plaintiff, Deaf Interpreter Services, an established
business in San Antonio and a direct competitor to VCS, brought
action under the Lanham Act and alleged unfair competition due to
the fact that VCS had used the words "deaf interpreter
services" in its company website metadata as well as the fact
that VCS registered a domain name containing those same
words.

The plaintiff not only sought damages in the form of
VCS' profits over a multiyear period, which exceeded $4
million, and attorney's fees in excess of $400,000, but more
importantly, it sought an injunction prohibiting VCS from using
"deaf interpreter services" in any manner. The
effect of such an injunction would have been to arm the plaintiff
with a protectable name and the ability to shut down other similar
businesses nationwide that use these words to describe the services
they provide.

In a week-long jury trial, presided over by visiting Judge
Royce Lamberth from the District of Columbia, the Fox team argued
that the mark "Deaf Interpreter Services" was not worthy
of protection in that it was a generic term for the services
provided in the industry. The plaintiff, however, argued that
the mark had acquired secondary meaning in the industry such that
it was a protectable mark under the Lanham Act. After the
close of evidence, the court granted a Judgment as Matter of
Law on the issue of attorney's fees, holding that this was not
an "exceptional case" under the Lanham
Act.

The jury returned a verdict that the mark in question was
generic and therefore not worthy of protection under the law.
As a result, the jury did not even consider the questions on unfair
competition and damages, thereby handing VCS a complete defense
victory.

Myers, a partner with the firm, is Board Certified by the
Texas Board of Legal Specialization in both Civil Trial Law and
Labor and Employment Law. He routinely guides businesses through a
variety of matters, including, employment contracts, noncompetition
agreements, wage and hour disputes, employment policies, protection
of proprietary information and trade secrets, investigation of
employee misconduct, and risk avoidance practices. Additionally, he
has experience with intellectual property and real estate
litigation and appellate matters.

Nikolopoulos, an associate with Fox, represents both
plaintiffs and defendants in state and federal courts, as well as
arbitrations. He represents clients in various intellectual
property matters, including, trademark, copyright, trade secrets
and unfair competition.

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